May 17, 2010

As I had expected, this morning brings some criminal justice action from the Supreme Court. Here is an early SCOTUS report on one big case already handed down:

We have the first opinion: 08-1224, US v. Comstock....

The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released....

The vote is 7-2, with Justice Breyer writing the opinion for the Court. Justice Thomas dissents joined by Justice Scalia. Justice Kennedy concurs in the judgment only, joined by Alito. The opinion in Comstock is here.

Though I will need to read Comstock closely before commenting on the substance, it is already possible to assert that this ruling has to help the cause of SG Kagan, since she argued on the winning side for congressional/federal power.

Comments

it's like they starved you for weeks then rammed everything down your throat in one day.

Posted by: . | May 17, 2010 10:21:24 AM

As a psychiatric nurse, I have been curious, as to what criteria the legal system is using to determine "mental illness which would definitely predict future dangerousness." The labels for mental illness are so vast and various. The opinions and classifications of symptoms are so frequently changing. I can't understand how this law could sort out, or does anyone care? Is it just another "punishment" against sex offenders in general? Well, we didn't know much about Elena Kagan before, but I know enough now to know I would not want her judging an issue about my dog.

Posted by: DLJ | May 17, 2010 1:01:25 PM

DLJ- plenty of people care. Every sex offender has family. The fact is this ruling takes someone who has already been punished and lets them be held indefinitely - deemed too dangerous for society with little or no ability to appeal for the prisoner. Now stack on top of this that Sex Offender laws change a few times a year, and it won't be long before others qualify for this restriction, including people who have never spent one day in jail. This could happen to my brother.. never spent a day in jail and now, because of retroactive punishment via Adam Walsh Act in 2006, he was reclassified as a Tier III offender (highest rank: Rapists and Child molestors) when he previously had been the lowest rank of offender. (For a non-sexual relationship with a 15year old when he was 21) But who knew? It was all switched without even looking at his case, or reading the judges notes even.

This happened because media hype and stupidity of those who think all sex offenders are rapists or after little kids, and cannot make a distinction between public urinators or romeos and rapists.

Just wait until your license is taken away for your 1997 speeding ticket.. They can't do that, can they? You bet, you are too dangerous to be on the road.. and its not punishment, its for the greater good. (Regardless how it effects YOUR life.)

Posted by: tbucket | May 17, 2010 3:33:28 PM

dlj: "As a psychiatric nurse, I have been curious, as to what criteria the legal system is using to determine "mental illness which would definitely predict future dangerousness."

me: i am glad you asked because as it turns out, i recently got ahold of the "top secret" formula used to determine which icky pervs merit civil commitment. it is done based on a complex formulation of the following:

1) an owija board

2) a magic 8 ball

3) tarot cards

4) palm reading

5) crystal ball

6) coinflips

7) pulling names out of a hat

8) pulling cards out of a deck

9) a call to the psychic friends hotline

10) a through examination by "iggy the icky perv detection dog"

11) a much less through examination by a prosecution psychologist paid for by the state

12) some tests whose names i could not possibly come close to spelling korrectly, but whose reliability is such that they have been held to be inadmissible in any case other than an icky perv commitment hearing

13) guessing

it is widely believed that factor 10 lead to the mistaken commitment of a ham sandwich as a "sexually violent predator", but iggy's handlers promise to remember to feed him next time ;)

ginny :)

Posted by: virginia | May 17, 2010 7:45:30 PM

tbucket: "it won't be long before others qualify for this restriction, including people who have never spent one day in jail."

me: do you have any idea how much it costs to civilly commit someone? its way more than the cost of a prison bed and the cost is such that any attempt to expand such a program beyond actual child molesters or rapists will be prohibitive

tbuckets: "This happened because media hype and stupidity of those who think all sex offenders are rapists or after little kids,"

me: make no mistake, the people being civilly committed are rapists and/or child molesters - however there are a lot of rapists and child molesters who haven't been civilly committed - but in many cases the factual circumstances of the crimes committed by the icky pervs or rapists are truly sickening. they are people who deserved long prison sentences but for whatever reason (the main one being that non-homicide sex offenses against children and women (leaving aside the treatment of black men accused of raping white women in the south) have been traditionally underpunished) of course, that is why the supreme court ignored the ex post facto, bill of attainder, and due process clause so majorly in kansas v hedrick in the first place. bad cases make bad laws and sex offender commitment is no exception

Posted by: virginia | May 17, 2010 8:09:51 PM

Saying someone deserved a longer prison sentence would indicate that you are privvy to all the facts involved in all of these cases. Are you? As I said, people like my brother never served a day in prison PRECISELY because the judge and prosecutor has access to the facts, which were not some trumped up rape case. Now AWA changes their punishment without looking at the facts at all. Would you say that happened because some felt the punishment was not enough?

I would say the generalization that all sex offenders are as bad as rapists is what caused it, not actual case fact. The fact is, through AWA, every sex offender became reclassified because of the assumption that every sex offender is a rapist and it is JUST NOT TRUE. You yourself only mentioned "under-punished" convicts, do you have the capacity to admit there are now OVERPUNISHED convicts as a result of this? Remember, it is an assumption NOT based on actual data that no sex offender, regardless of their illegal act, can ever be redeemed, and thus "throw the key away.: And I say in response to that: You don't know the individual facts of the case, you cannot scream they were not punished enough. Yet, it happens daily when neighbors harrass their released sex offender neighbors. Clearly, they think the sex offender should not live there, and go about harrassing and attacking, all the while they do not even know what action made that person a sex offender to begin with.

Ginny, most the time I agree with you, but this time I can't. Since I was neither judge nor jury nor prosecutor nor defender nor defendant at ANY of these cases, I cannot say with any certainty that their punishmens were inadequate. And neither can you. I, like you, believe there are some REALLY BAD people that are sex offenders.. and most of those Child Molestors and Rapists are IN JAIL. What is happening in our society is the assumption that all sex offenders are as bad as the worst one, and so they should all be punished equally and terribly. Most people who are free from prison (or never went) are free precisely because those who knew the case set up the punishment accordingly. Now, with AWA, new punishment comes without any new facts or convictions, and without looking into the cases of those it further punishes.

I won't pretend to be the babe in the woods and say there aren't bad people out there, but I also won't put on blinders and not acknowledge that AWA is complete horse crap by re-punishing those who already paid for their crime. And if it is because general opinion that this is okay, then I have to say that the general public with their general opinion are generally hatemongers.

Posted by: tbucket | May 18, 2010 1:00:50 PM

I am still waiting for a good law firm to set up a legal fund where every sex offender, their families and friends donate $10 each. The funds would then be used to file lawsuits in every state -- over and over again.

Posted by: Huh? | May 18, 2010 10:11:46 PM

tb and ginny as far as this goes!

"Ginny, most the time I agree with you, but this time I can't. Since I was neither judge nor jury nor prosecutor nor defender nor defendant at ANY of these cases, I cannot say with any certainty that their punishmens were inadequate."

LEGALLY it doesn't matter if their sentence wad inadequate, over punishied or whatever. IT'S OVER and under our constitution the state and the hate filled idiots who live in them are NOT allowed a DO-OVER!

Changing the senteces of 100's of thousands of individuals ever 3-6 months for the last 10 years is so illegal and treasonious i just want to hurt the nearest politician. This is espeicaly heanious in the 100's of thousands of cases that are the result of a PLEA BARGIN ie...CONTRACT between the state and the individual. Expecially those that never even mentioned the registry or any of it's illegal off shoots since they DIDNT' EXIST at the time.

Posted by: rodsmith | May 19, 2010 1:07:49 AM

To Huh
That is the first constructive idea I've heard yet. It seems to me, just from reading from newspapers on the internet, that most people find the AWA unconstitutional, yet nobody does anything about it. I wish I knew of an organization who could unite the people who strongly believe this Act is wrong.

Posted by: DLJ | May 19, 2010 4:12:03 PM

Thats the point I was making anyway, rod. Its horrifying that politicians can knowingly create illegal laws that screw with peoples lives until they get overturned. Letting the courts sort it out puts peoples lives on hold for 4-5 years, and in the meantime people start killing Sex Offenders and even people suspected of being sex offenders. It is a lot more than an inconvenience.

Even more horrifying that even the Supreme Court does not see extra time in jail as an extra burden or punishment in Comstock. It sickens me that the Constitution can be conveniently ignored when it is protecting an unpopular group of people. It's just the "Need a dog to kick" mentality. There is no need for interpretation.. if someone has committed no further crime, they cannot be punished again after the fact. (Loosely described Article 10) One person's opinion on what qualifies as punishment who drafts the law does not mean it isn't punishment in application. Ask the people in Florida who now sleep on their parole officer's floor because the tight application of residency restrictions that took them out of their homes and put them on the streets and under bridges. Intent should not define what is or isn't punishment.. factors of danger and undue hardship should.

There are almost a million people in America right now who have had their rights taken away illegally by people who want to re-interpret the rules and rights we have governed by for over 200 years. It's time for people who rightfully paid for their crimes to stop being punished just because a hate filled individual drafts laws out of the desire to punish further, and be disguised as a protective measure. Men and Women have their lives at risk, and even people who are not sex offenders including their families and neighbors. People have already died because of this.. how many more need to?

Posted by: tbucket | May 19, 2010 4:23:22 PM

"People have already died because of this.. how many more need to?"

at the very least 10-15 of the nazi's in washington. MAYBE once they realized they were no longer safe from the harm they cause...

Posted by: rodsmith | May 19, 2010 10:35:21 PM

i agree this was a good ideal.

"I am still waiting for a good law firm to set up a legal fund where every sex offender, their families and friends donate $10 each. The funds would then be used to file lawsuits in every state -- over and over again.

Posted by: Huh? | May 18, 2010 10:11:46 PM"

But i disagee with using it in a legal fight. thanks to the nazi's on the u.s supreme court that is now basically CLOSED.

Better to take it and setup a fund outside the us. that would pay per HEAD for any idiot politician or media fool who is dumb enogh to announce "i have a sex offence law ideal"

MAYBE then they would find a new target.

Posted by: rodsmith | May 19, 2010 10:37:49 PM

@ DLJ @ rodsmith

From reading several legal blogs, its seems more and more states are finally starting to respect their own constitution, which in every case states that ex post facto legislation is unconstitutional. How many posts have you read where a judge overturned a conviction because a law was applied retroactively? You get enough mass class action type suits going and eventually, when enough state judges apply the constitution as it should be, SCOTUS will do the same.

Posted by: Huh? | May 20, 2010 2:22:31 PM

Well...I hope Greg Abbott and all those other Republicans get used to the extended federal authority. This helps pave the way for their loss in the healthcare suit.

tbucket: "do you have the capacity to admit there are now OVERPUNISHED convicts as a result of this?"

me: sorry for the late response, but the answer to your question is "yes, in two ways" :)

way 1 - child pronography cases which often have way disproportionate sentences to the extent of the crime (in fact, child pron cases are getting to be as bad as drug cases when it comes to using huge punishments for comparatively minor crimes). i've said it repeatedly, but it is absolute lunacy to give more time for possessing a picture of a child being molested than to actually molest a child. yet, that exact situation would be likely to happen in the state where i practice. the at times draconian sentences for child pornography are directly in response to the panic over sex offenders.

way 2 - legitimately draconian mandatory minimum sentences which have now appeared in some states including mine for some sex offenses against children. these sentences are so harsh (even including mandatory minimum/maximum terms of life without parole regardless of the facts of the case) that they likely put children at increased risk of being killed. yes, in an appropriate case a life without parole sentence is appropriate for raping a child - however, it makes no sense to treat a particularly egregious case the same as a bad case. you cannot tell me that someone who once while drunk stuck his finger in his daughter's vagina deserves the exact same sentence as an icky perv who repeatedly and violently rapes a little girl inflicting serious physical injury or someone who sells their daughter or son to an icky perv to rape on camera to create child pornography. yet, the father who drunkenly molested his daughter is subject to the same mandatory minimum and likely will face the same sentence. Of course, it is possible that the prosecutors will pursue lower charges against the drunk father to get a conviction without the mandatory minimum - but that is hardly perfect - the father deserves to be convicted of the crime he committed rather than a lesser crime he didn't commit. worse, there might be considerable pressure put on the little girl (which could be more traumatic than the molestation) to not testify against her father if it means a life sentence or at least a long sentence. the result is that the victim could be traumatized and the crime could go unpunished simply because some legislatures wanted to be tough on sex offenders. i think that in every case a sex offense against a child should get some period of incarceration, but not every sex offense against a child deserves the maximum sentence - there has to be room to differ between the bad and the truly horrifying cases.

and if you missed it and you may have, sweetie, i'm opposed to the "civil commitment" of sex offenders because the purpose of the commitment is further punishment and the "treatment" is a sham. plus, there really is no reliable way to tell if icky perv a is more "dangerous" than icky perv b. in fact any honest psychologist will tell you that predicting future dangerousness of any type (one reason of many that i oppose the death penalty) is nothing but a guess based on presumed risk factors. it is only a matter of time before "sex offender civil commitment" has its own dr. grigson (i hope i spelled the name correctly). i would hope that the state would only pick ethical psychologists to conduct the evaluations, but i wouldn't count on it.

ginny :)

Posted by: virginia | May 22, 2010 12:47:29 PM

"... these sentences are so harsh (even including mandatory minimum/maximum terms of life without parole regardless of the facts of the case) that they likely put children at increased risk of being killed."

Although I am on the fence, that is one of the problems I have with the SO laws. There have been many cases, just in the last 10 years, where kids were snatched, sexually abused and murdered. The laws leave no alternative for the SO that has a propensity to molest kids. Take Joseph Edward Duncan III, a SO who in 2005 kidnapped Dylan and Shasta Groene after murdering their 3 family members. After days of sexually abusing and torturing Dylan, Duncan murdered him. There is the case of 6-year-old Christopher Michael Barrios in GA. Again, a registered SO who previously molested and turned to murder.

Personally, I don't see the connection between child porn possession and physically abusing a child -- no one has been able to make that connection any more than anyone has connected rape with adult movies.

Fact is, the mandatory minimums hijack the legal system and don't allow judges to judge.

Posted by: Huh? | May 25, 2010 4:01:37 PM

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